The Behind-the-Scenes Battle for the Future of the Internet

The noise over net neutrality is coming from Congress, but the real action is elsewhere.

National Journal

Democrats can't do anything about a court ruling that struck down their cherished net-neutrality rules, but they know someone who can.

The now-vanquished "Open Internet" rules were the province of the Federal Communications Commission, and that's where Democrats are pinning their hopes to restore them.

At stake, they say, is no less than the future of the Internet. The FCC's rules required Internet service providers to treat all websites equally. Democrats fear that without the rules, Internet providers could soon start slowing down access to websites like Netflix and Google unless the sites pay for special Internet "fast lanes." The Internet providers could even block access to particular sites altogether.

In Congress, top House and Senate Democrats launched legislation Monday aimed at restoring the rules, at least while the FCC crafts new ones. But that's all for show: The bill is dead on arrival in the House, where Republicans have long despised the FCC's net-neutrality rules — virtually every one of them voted to repeal the rules in 2011. Per the GOP, the regulations are an outdated, unnecessary, and burdensome intrusion into the business decisions of Internet providers such as Comcast and Verizon.

Instead, the Democrats' bill is aimed at making their voice heard at the site of the real fight for the future of the Internet: the FCC. The representatives are begging commission Chairman Tom Wheeler to act unilaterally to restore the rules.

"It is congressional pressure," a Democratic aide said, adding that the legislation shows that Democrats on the Hill will stand behind Wheeler if he moves to reinstate the rules. "Many senior members believe that the FCC needs to take action — that simply accepting the court's decision is not satisfactory."

And Wheeler has all the votes he needs to do so; he's an Obama appointee and at the head of an ideological majority on the five-member commission. The question now is whether he'll take action, and how.

He has a few options for trying to salvage the regulations, which were first promulgated by his predecessor, Julius Genachowski, in 2010. Wheeler could appeal the decision, but with a unanimous ruling against the FCC from a three-judge panel of the Court of Appeals for the D.C. Circuit, the agency's chances don't look good.

The most dramatic option would be to reclassify broadband Internet as a "telecommunications service," which the FCC has broad authority to regulate. Reclassification would put the rules on firmer legal ground but would prompt an immediate backlash from congressional Republicans, who would view the move as a government takeover of the Internet.

The FCC has sweeping powers over phone companies, down to the prices they charge and the areas they serve. Imposing a similar regulatory regime on the Internet would strangle its growth, Republicans fear. The FCC could reclassify broadband while also imposing certain limits on its own ability to regulate, but that restraint may do little to appease the agency's critics.

Another option would be to try to rework the rules under the existing authority.

Although the court struck down the specific rules in the case, it did uphold the FCC's overall authority to regulate broadband providers. Wheeler could start a new rulemaking process or just announce the principles he intends to protect under the agency's current powers. But reworking the rules would almost certainly mean watering them down.

Harold Feld, the senior vice president for consumer advocacy group Public Knowledge, expressed doubt that the FCC will be able to enact effective regulations without reclassifying broadband as a telecommunications service.

"[FCC officials] may be thinking that they can pick off enough of the most obvious forms of abuse that it would be adequate," he said. "I don't think it would be."

Feld noted that because Democrats control the White House and the Senate, Republicans can't pass legislation to undo an FCC decision to reclassify broadband. "People get paid to do their job," Feld said. "And one of the things that everybody said about Wheeler that was going to be so great was that he was going to have the spine and willingness to do his job, and he wasn't going to chicken out just because people make a lot of noise."

The Democratic Hill aide said lawmakers are intentionally trying to leave Wheeler's options open and not dictate what action he should take. But the aide said most Democrats believe the FCC needs to have some kind of net-neutrality rules on the books.

"The action right now is at the FCC. The ball is in their court," the aide said.

Wheeler has repeatedly stated that he is committed to protecting a free and open Internet. Speaking after the FCC's meeting last week, he said he is still looking at "all of the tools in the toolbox" and that the agency will announce a "plan and rationale shortly" for dealing with net neutrality.